The legal tangle of family finances

Posted on April 8th, 2019

Making a Will - beware the assets testIt is common for family members who provide financial support for each other not to put those arrangements in writing.   It is also common for lawyers to see those family members after the event when relationships have soured and for lawyers to find themselves saying to clients “if only you had put it in writing”.  There is no doubt that a written document is the best protection.  Read the rest of this entry »

If the husband was the puppet master, who was the puppet?

Posted on July 3rd, 2018

If the husband was the puppet master, who was the puppet?In a recent Family Law Full Court case, it was not in dispute that the husband exercised control over his 99 year old father’s unit trust (UT) including directing agents on behalf of the UT, using the UT’s assets as security for his own personal borrowings; intermingling his funds with the funds of UT and, since 2002, treating the UT as if it was his own.   It was the expectation of his estranged wife therefore that the assets of the UT should be included in the assets to be adjusted between the parties on settlement because the father’s UT was simply a puppet for the husband.

The Full Court and the trial Judge however disagreed and found, that whilst the father remained the owner of the UT, he was not a puppet of his son.  The husband had some “lawful right to benefit from the assets of the trust” and controlled some of the dealings of the UT, but they were not satisfied that the UT was a device used by him for his sole benefit. Read the rest of this entry »

Elder abuse – a push to keep our elderly safe

Posted on January 9th, 2018

Elder abuse is an area which is becoming of greater concern to Australian society. With an aging population and increased wealth being held by the elderly, it is an unfortunate reality that elder abuse is becoming more and more common.

Elder abuse is defined as ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’.

Elder abuse can take various forms, including:

  • physical abuse
  • psychological or emotional abuse
  • sexual abuse
  • financial abuse
  • neglect

Read the rest of this entry »

Departure fees for the departed

Posted on July 27th, 2017

In the case of Estate of Madeline Cozma v Milstern Retirement  Living Pty Ltd t/as Golden Lifestyles [2016] NSWCATCD 56 a retirement village resident died in 2005.  Arrangements were made to sell the deceased’s legal interest in the village (she held a long lease in a unit at the time of her death) and the executors of the deceased’s estate agreed with an agent to market the unit.  Initially, the agent was linked with the village operator.   Read the rest of this entry »

Legal reform – elder abuse – engaging with aging

Posted on June 19th, 2017

The ARLC Commission has launched its report into Elder Abuse and its key recommendations can be found at Some really sensible suggestions have emerged from the report which are worthy of implementation.

For example, the idea of a national register for enduring powers of attorney.  In our experience it is not unknown for different members of a family to take their elderly relative “lawyer shopping” resulting in multiple documents which conflict with each other.  The “front line” for the use of powers of attorney is often a financial institution.  Ensuring staff at Banks receive training in the legal process for accepting a power of attorney is welcome.  Read the rest of this entry »

Hospital applies for guardianship orders

Posted on February 15th, 2017

In the recent case of NEJ [2017] NSWCATGD 1, the NSW Civil and Administrative Tribunal has allowed an Area Health Authority standing to apply to it for guardianship orders concerning a patient in hospital.  The patient had complex health issues and had been in hospital for some time. An Occupational therapist assessment found that it was unsafe to discharge her home.  

The purpose of the hospital’s application was to determine whether a guardian should be appointed to assist in the process of planning for her discharge from hospital.   The patient did not want to move into aged care and was resisting plans for her future.

Read the rest of this entry »

Spending Mum’s money

Posted on February 15th, 2017

spending money mum A recent case in the Supreme Court (Lindsay v Arnison [2017] NSWSC 41) highlights a need for family members to take seriously the requirement to keep proper financial records when helping aged parents pay bills and operate their accounts.


Read the rest of this entry »

Superannuation death benefits

Posted on February 9th, 2017

If a member of a superannuation fund dies (the deceased) there are a number of elements that determine how their superannuation death benefit will be paid.  These include the terms of the fund’s trust deed, applicable trust laws, the Superannuation Industry Supervision Act 1993 and Regulations (SIS) and the Income Tax Assessment Act.

SIS Regulation 6.22 provides that the trustee can pay a death benefit to any dependent of the deceased or to their Legal Personal Representative (LPR).

Read the rest of this entry »

Self-managed superannuation funds (SMSF) & enduring power of attorneys (EPOA)

Posted on December 21st, 2016

The following example from a draft tax ruling illustrates some of the issues in respect to Self-Managed Superannuation Funds (SMSF’s) and Enduring Power of Attorneys (EPOA).  If this prompts a query from you, give us a call:

EXAMPLE:  Clare is the sole member of a SMSF.  The SMSF trustee is Clear Pty Ltd and Clare is its sole director. The responsibilities of being director of the trustee company of the SMSF have become too difficult and time consuming for Clare. Read the rest of this entry »

Rights between joint guarantors

Posted on December 19th, 2016

The NSW Supreme Court recently dealt with a claim for contribution between multiple guarantors.  In simplified form a company “OD” loaned money to an incorporated legal practice.  The loan was guaranteed by three individuals and a further company Trout Hall “Trout”.  The loan was not repaid.  Two of the three individual guarantors became insolvent.  The lender sued the remaining individual guarantor, Mr Robert Clancy, and he cross claimed against Trout. joint guarantors rights

Prior to final hearing Mr Clancy paid an amount to the lender to settle the claim against him.  Ultimately, the Court held that Mr Clancy had paid more than required. Trout argued in its defence that because of the payment by Mr Clancy no amount remained owing from it to the lender.  It seems the lender accepted that argument because the claim between the lender and Trout also resolved. Read the rest of this entry »

Extending Time To Pay – Are There Risks?

Posted on November 17th, 2016

Particularly amongst family members, or close friends, it is not uncommon for money to be loaned under oral agreements. In its simplest form, it might be an agreement between friends to “spot” $50.00 until payday. In more sophisticated contexts, it may be an agreement to loan substantial amounts of money simply on the promise that the borrower will repay that amount, with or without interest. oral loan agreement

The NSW Court of Appeal recently looked at a situation involving an original oral loan agreement; and a claim the repayment date had later been varied, also by oral agreement.

Read the rest of this entry »

Powers of Attorney…Super Powers?

Posted on October 10th, 2016

powers-of-attorney-super-powersKatie Thompson is a Solicitor at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

If you are considering appointing a power of attorney or if you have been appointed as someone’s attorney it is important that you understand the rights and responsibilities associated with this.

An attorney may be given general powers to act on a principal’s behalf, allowing the attorney to undertake any activity and enter into any transaction. This means that an attorney may operate bank accounts; manage and pay bills; and lease or sell property on behalf of the principal. Read the rest of this entry »

Traps with Powers of Attorney

Posted on September 20th, 2016

Traps with Powers of Attorney Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The NSW Supreme Court recently dealt with a case about the transfer of a property under a Power of Attorney (PoA). Briefly, a Mrs Cohen, an elderly and infirm lady, granted a PoA to her son. The son was also the sole beneficiary of the only known Will of his mother.

The son used the PoA to transfer a home unit from her name to his. This particular PoA expressly permitted the son to confer a benefit on himself.

By the time of the hearing Mrs Cohen was in aged care; the cost of her care exceeded her pension; and the NSW Trustee & Guardian had been appointed to manage her financial affairs. It wanted to sell the unit, to release funds to be used for Mrs Cohen’s care. It argued the transfer was improper, despite the PoA allowing the son to benefit himself. Read the rest of this entry »

Charity begins when the judge decides

Posted on August 26th, 2016

by Felicity Wardhaugh

Charity when judge decidesFelicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in wills and estate planning, commercial dispute resolution & litigation, and employment law.

A recent Supreme Court decision, namely, Estate Polykarpou; Re a charity [2016] NSWSC 409 demonstrates the importance of keeping a will up to date or making substitute provisions in a will.  The testator who made her will was obviously a fan of the Oprah Winfrey show and left half her estate to the Oprah Angel Network (“OAN”).  Read the rest of this entry »

What is Probate and is it needed when I die?

Posted on December 18th, 2015

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

Probate is an order of the Supreme Court formally appointing an executor under a will and authorising that person to administer the estate of a deceased person.

In order for Probate to be granted, the executor named in the Will of a deceased person must apply to the Supreme Court in NSW. This application requires the executor to prove a number of things including that the deceased person is deceased, the Will is the last will of the deceased person and the executor is the executor named in the Will. The executor must also provide additional details such as details of the beneficiaries of the Estate and the assets of the Estate. Read the rest of this entry »

Planning for a peaceful end

Posted on December 11th, 2015

by Felicity Wardhaugh

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

If you have been watching television or reading the newspapers lately you may have heard discussions about the fear of a prolonged but meaningless life.  Your family members might have echoed this sentiment: “switch me off if I am just a vegetable, I don’t want to linger on for the sake of it”.   How, though, does this happen legally? You cannot make your wishes known if you have already fallen into a vegetative state.

Planning for the future is the best way to deal with the possibility.  A legal document in which you appoint a family member as your guardian to speak on your behalf coupled with a direction to the guardian of the things which matter most to you will make sure your wishes are known.  Doctors will then understand what sort of person you are and will be able to act on decisions made for you by a guardian who understands your wishes. There are a number of resources to use to help you think about these issues and as part of the process of appointing a guardian we can help you locate and use these resources.

If you think you would like some help making these arrangements speak to us at Mullane & Lindsay.

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay, and practises extensively in  Commercial and other Litigation and Employment Law. If you require any assistance in these areas please contact Felicity Wardhaugh or contact our Newcastle office.

Estate planning – requires capacity

Posted on November 27th, 2015

by Felicity Wardhaugh

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

In the recent case of The Estate of Kati Tsilfidis; Stavrakakis v Tsilfidis [2015] NSWSC 1720 a 79 year old mother rewrote her Will a year before she died. The Will made no provision of any substance for her daughter. Her daughter contested the Will arguing that her mother lacked capacity when she executed it. This dispute led to court proceedings where a doctor was called to give evidence about the mother’s capacity. Ultimately the court held that the mother did have capacity to write the Will and the Will was valid.

However, the case serves as a reminder that when a Will is prepared the person making the Will (the testator) must have legal capacity. The Court discussed the legal test for capacity which is in 4 parts: the testator must understand the nature of the document they are signing, what property they have, who the members of their family are and what decisions they should make about dividing up their property. Read the rest of this entry »

Insurance brokers – Duty to Enquire

Posted on October 19th, 2015

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

In Swansson v Harrison [2014] VSC 118, a terminally ill plaintiff sued his broker for a negligent failure to advise at the time the relevant (life) policy was applied for. In short, S had an existing life policy but its premium increased significantly, so he sought advice from his regular broker about alternatives. The broker recommended another policy. An application for it was made and accepted; and the old policy was then cancelled. Soon afterwards the plaintiff was diagnosed with a terminal illness. The old policy was no longer available and the new insurer declined to pay on the basis that there had been a non disclosure of a medical condition.

Relevantly, shortly prior to meeting the broker, S had an appointment with his GP about stomach pain. That was disclosed in the application form. However between making the application, and the insurer accepting it and issuing the new policy, the plaintiff was referred for further medical investigation. Those investigations ultimately led to the diagnosis. Read the rest of this entry »

The legal personal representatives of a deceased person entitlement to payment

Posted on September 1st, 2014

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

Q: How should the legal personal representatives of a deceased person deal with entitlement to payment on the deceased’s superannuation upon death?

A: read on…

Our office was recently discussing all things Queensland – and it wasn’t only the State of Origin series. Judgment in a Queensland Supreme Court case of McIntosh v McIntosh [2014] QSC 99 was delivered in mid May and its potential impact on the community was not lost on the trial judge. Justice Atkinson wrote:

This decision deals with an area of the law which has growing practical importance in view of the growth of personal superannuation: how should the legal personal representative of a deceased person deal with the entitlement to payment of the deceased person’s superannuation upon death. As can be seen from this case, the amount invested in superannuation and receivable by way of death benefit may be well in excess of the amount of funds in the estate. Read the rest of this entry »

Ignorance is not bliss when it comes to making a will

Posted on September 1st, 2014

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

I recently read an article which stated since 2005 the number of Will disputes reaching the Supreme Court has risen by almost 60%. While this is a considerable increase, it comes as no surprise to most lawyers. With the aging population, the changing nature of families and relationships and the increasing wealth of individuals, estate planning and succession law are becoming of great importance.

When people talk about “contesting a Will” or “Will disputes” they are usually referring to a Family Provisions Claim (FPC). An FPC is an application to the Supreme Court for an order that provision be made out of a deceased’s estate for a person’s maintenance, education and advancement in life.

Read the rest of this entry »